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Read All Over
Posted in Truth Is Stranger Than (Legal) Fiction! on Thursday December 05 2013 @ 6:34am
A few good reads --
- So, you think you know what the Hobby Lobby case is all about? This is a case where everyone seems to have an opinion, although few are aware of the actual questions involved. The Volokh Conspiracy has a wonderful series about Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialty Store v. Sebelius: Hobby Lobby, the Employer Mandate, and Religious Exemptions Eugene Volokh, The Volokh Conspiracy (December 2, 2013). Links to the rest of the series are provided therein.
- Volokh Conspiracy also cites a great local (to us) article about solo firm problems: Jim Hannah on
Abandoned Practicesof Dead or Disbarred Lawyers, Will Baude, The Volokh Conspiracy (December 2, 2013). We read it first, in an actual paper, but they beat us to the posting punch. Dear local paper: more like this, less like the other. Thank you!
- The Unemployed Lawyer, ever deft, has a good explanation in the latest issue of Article 25: Courthouse Crap, Unemployed Lawyer, Article 25 (November 27, 2013). Yes, court staff ARE
overburdened and underfunded,and the end is nowhere in sight. For some background, see Coalition Going to Court over Sheriff's Homeless Strategy, Ann Thompson, WVXU (October 15, 2013), and related stories (follow links from the WVXU story). Full disclosure: the sheriff in question is our sibling's boss, and he's a breath of fresh air in this county. We wish people would work WITH the new guy -- he seems to sincerely welcome it, and he has some good ideas.
- Our apologies for thinking that the Ohio man mentioned in this story must be from Cleveland. No, he is from our very own Hamilton County. Sorry! See also Paper Terrorism, Prisoners, and Pro Se Mischief, David Giacalone, shlep: the Self-Help Law ExPress (December 16, 2006). We love being called
Posted in Civil on Thursday November 21 2013 @ 7:34am
Imagine you are in the E.R. of your local hospital. You have been examined, and there is no question that you are in need of urgent medical care. There are no insurance coverage or other payment issues barring proper treatment. Yet, you are discharged within hours because the hospital is unable to find you a bed. You go home and die the next day, as a direct result of your illness.
Sond crazy? Yes. Yet, this is a perfect description of how the Commonwealth of Virginia's mental health system does (or does not) work.
Why no beds? For one, there are not enough
least restrictive alternatives available. Those who are civilly committed (i.e., are unable to care for themselves or who pose an immediate danger to themselves or others) meet the criteria for court-ordered treatment. From the moment of commitment, the individual must have a treatment and discharge plan. This plan must include keeping the person in the least restrictive alternative -- i.e., not necessarily a state mental hospital. But, because these less restrictive facilities such as group homes are small and rare, and have stricter standards (for example, a resident of a group home could be kicked out for being too disagreeable, or for stabbing someone's hand with a fork in the course of a dinner roll dispute), this type of placement is hard to come by. Likewise, a sensible transfer to a Veterans Administration hospital (a small wish if there ever was one) may be denied. Thus, individuals who might otherwise be in group homes, other hospitals, or day reporting centers end up hogging the more restrictive beds.
In 2005, Virginia had 8 state hospitals and 38 licensed hospitals available to provide adult psychiatric care. According to one report,
In some localities, there are documented bed shortages and CSB [Community Services Board] staff report that at times, a TDO [Temporary Detention Order] is not issued for a person under an ECO [Emergency Custody Order] and he is released simply due to the lack of a bed. Virginia Civil Commitment Procedure and Practice: Policy Analysis and Recommendations to Increase Voluntary Admission, Brett M. Merfish (May 2010). See the Virginia statute addressing emergency custody (part J covers the issue of bed availability). For general information about the commitment process, see Eliminating Barriers to the Treatment of Mental Illness: Virginia. Northern Virginia, which is more heavily populated, has a stark imbalance of beds to patients. Thus, many are transferred to the less populous western part of the state.
Another reason, of course, is funding. See Are Cuts to Virginia's Mental Health Programs Implicated in Creigh Deeds' Son's Attempted Murder/Suicide? Matt Connolly, Mother Jones (November 20, 2013). Follow the money, or lack thereof!
Western Virginia counties are hilly and rocky and beautiful -- each Fall, tourists descend on the area to view the blazing colors. The people are some of the best you could hope to meet, with great community spirit, wonderful college towns, and a rich cultural heritage. Yet, it seems to be home to one avoidable tragedy after another -- two university shootings (one at a law school, one at a university), everyday mental health woes, and high-profile, completely preventable deaths such as the Deeds case. Whether because of its small population and remoteness, the rejection of government solutions, the poor quality of basic healthcare in Virginia's rural areas (we used to live in a county where the only healthcare facility was one small free clinic), or some combination thereof, Virginia has managed to create the perfect storm.
What's the definition of
crazy? Doing the same thing over and over and expecting something other than the same bad result. By this definition, Virginia's mental health system is, well, crazy.
Posted in Truth Is Stranger Than (Legal) Fiction! on Tuesday October 29 2013 @ 5:16am
It's almost Halloween, and that can mean only one thing. Well, two -- one, watch out for that neighbor with the horrendous candy. Two, the world-famous court-o-rama.org annual haunted courthouse post!
First off, Ohio! Yes, my fellow Ohioans contributed greatly to this year's post with a statewide tour. Gremlins, a Lady in Pink (Rizzo?), and mysterious flying paper clips all appear in Haunted Ohio Courthouses, Stephanie Beougher, CNO (October 28, 2013). For more about the Wooster weirdness, see Haunted Wooster Courthouse Home to
Lady in Pink.
Meanwhile, across the river in Moundsville, West Virginia, one report asks: What Could Be Scarier Than a Paranormal Hot Dog Stand? John W. Miller, WSJ (October 27, 2013). This eerie weenie roast boasts the Archive of the Afterlife: A Paranormal Museum. It capitalizes on the much-haunted West Virginia State Penitentiary, among other creepy people, places and things. (Fun fact from the WSJ article: haunted houses in the US bring in $500 million annually.)
Out west, there's the Navajo County Courthouse in Arizona. See Tales Of The Unusual About At Old County Courthouse, Linda Kor, Arizona Journal (October 25, 2013). (Note to Arizona Journal: coats are
hung, convicted criminals in the old west were
hanged.) There, plywood cutouts have been known to fling themselves at workers, inexplicable footstep noises have been heard, and a nasty hair-pulling incident occurred during one tour.
Finally, should you find yourself at a haunted house this season, do not end up in a haunted or non-haunted courthouse as a criminal defendant. See: Assault, Disorderly Conduct at Portage Park Haunted House, Rachel Cromidas, redeye (October 21, 2013). Punching an off-duty officer will land you a trip to the actual Cook County Criminal Division.
Be safe, and have a fun Halloween!
October Is Here!
Posted in Hype on Wednesday October 09 2013 @ 4:46am
October is here, and that means a new term for the Supreme Court of the United States (SCOTUS). We were lucky enough to attend a preview of the new term, led by Howard Tolley of UC Law.
Of the governmental branches, is the SCOTUS the most functional, least generous, least dangerous? Professor Tolley says maybe, but notes that it is definitely the least understood.
On that note, he gave the audience a pop quiz, reproduced in part below, with extra parts added by court-o-rama:
- What is the usual win rate for the U.S. Solicitor General?
- What was the win rate for the U.S. Solicitor General last term?
- Which two Justices agreed most often last term?
- What is the number of Jewish justices currently sitting on the high court?
- What is the number of current Catholic justices?
- What is the number of Protestant justices?
- How many are women?
- How many are age 73 or older?
- how many are Democratic appointees?
- What percent of petitions are accepted and scheduled for oral argument?
- Last term, what percentage of cases were unanimous?
- Recent research found how many instances of humor (
We deemed something as being humorous if it elicited laughter from the audience, justices or advocates) last term?
- What percentage of humor did researchers find, but court reporters omit?
- Who was the least humorous last term, according to this research (or, arguably, by any standard)?
- Who was the most humorous?
- According to this study, are conservative or liberal justices funnier?
The Libertarian's Day in Court
Posted in Administration on Saturday September 21 2013 @ 6:28am
A recent article posed eleven questions to ask an obstinate Libertarian: 11 Questions to See If Libertarians Are Hypocrites, R.J. Eskow, Salon (September 12, 2013). We think only one question is necessary:
Did you use a road to get here?
But this (plus Tom's facebook rants) got us thinking -- what would a privatized justice system look like? First, you'd have to imagine privatized law enforcement. That could run the gamut from mall cops to private bodyguards to hired thugs. If you didn't pay into some sort of protection system, you could not simply call government-sponsored police to help you.
But suppose you live in a safe place. Nothing dangerous ever happens to you. However, your business, unfettered as it is by government intervention, finds itself in crisis. Another person with whom you do business has failed to deliver. How do you enforce your contract?
And here, having seen the disastrous future from the crumbling present, you all wave your hands and shout out,
Private arbitration! Hired judges! Mediators! You are all correct, of course. These tools are already at our disposal. Decades ago, the Trends Report from the National Center for State Courts predicted the slide into private justice. See, for example, 'Rent-a-Judges' Might Harm Court System, Lawyers Say: Judiciary, Bar officials warns of a trend that could lead to a 'private justice system' for the wealthy and place an added strain on the public legal structure, Ted Rohrlich, L.A. Times (November 1, 1989). Just a few months ago, these dire predictions came to fruition, as the SCOTUS declared that they are still more than OK with private arbitration. See (if you can stand yet another article claiming that a case that reached the SCOTUS to be
little-known): The Supreme Court Just Made It Easier for Big Business to Screw the Little Guy", Stephanie Mencimer, Mother Jones (June 20, 2013).
So, that works for some. Could private dispute resolution help everyone, all the time? While we wait to find out, let's think about the courthouse itself.
Does that mean nothing should be privatized? Really, Taylor Swift,
Not ever? No! But there are ways to go about it. A radical idea from the UK has sparked discussion. See, for starters: Courts May Be Privatised to Save Ministry of Justice 1bn, Ben Bryant, The Telegraph (May 28, 2013). Our favorite court technology guru, Jim McMillan, made these sane comments:
First, privatizedjusticealready exists in nearly every country. It is calledorganized crime protection racketeering.So yes, privatization in that sense can be quite profitable.
But to be fair, the article seems to be saying that the focus will be on the services rather than the decision making (judge) side of our court business model. In the USA we have had the government lease-purchase financial model for some court buildings for quite awhile. It is a good safe investment model that provides bond-like funding without the political overhead of a bond election.
Regarding the record keeping side, E-filing/e-courts are certainly having an impact. But what is not said is that the public is woefully underserved by the lack of court staff. In other words, I very often cannot get anyone to answer the telephone at courts I call. So while it might look promising that the clerical staff could be privatized, the savings will be very minimal as these positions are low pay and hence high turnover (meaning training costs).
Last, a great cut/privatization could open the courts to corruption as is the cae in many countries where staff receive starvation wages. Sofee for servicescorruption enters into the system and becomes normalized over time.
I remember that New Zealand's courts were reviewed in the early 90s as part of their overall government review. The result was that they didn't privatize anything...As they say, there are very few really new ideas.
So, it looks as though Libertarians, like everyone else, will be half-satisfied by their day in court.
Posted in Criminal on Thursday July 18 2013 @ 7:15am
Court-o-rama.org in no way resembles the popular notion of
conservativism. But we like our old documents and rules, and we like them to be (to the extent modern times allow) all nice and preserved-like.
Are we mere Luddites, clinging to our Rolodexes and ink pens for the sake of tradition? Are we stuck in the past, with our Retro TV and our mood rings? (Come to think of it, Uncas did introduce one of us like this:
This is Anna Skovee. She's from the 70's!)
No, there is something more to this. When we tamper with the Constitution or the common law, our entire system -- legal, governmental, societal -- breaks down. We have seen the demise of the civil jury here and (even moreso) in the UK. We have chipped away at the grand jury. And several states have spun the common law gold standard of self defense into straw, turning a useful and sane defense it an unrecognizable and very dangerous principle.
Was the common law so terrible that we felt the need to slice and dice it? We are all for reform when reform is due. We love innovation, and wish people would not fear it so. But we also live by the mantra
If it ain't broke, don't fix it. The common law has been around since the Middle Ages. To it, we owe wonderful inventions such as juries, precedent, habeas corpus, and warrants. Conservatives and liberals alike should embrace the common law, as it protects individuals against the state, gives everybody a voice, and provides for basic freedoms. You can see its influence on the Magna Carta and the Declaration of Independence. Boalt Hall provides an excellent background history of common and civil law: The Common Law and Civil Law Traditions. Is this really something we want to abandon? Some might say yes. See The Death of the Common Law: Expiry Date, 2100, Duhaime's LawMag (October 14, 2009).
Can grand juries filter out bad cases? They have their little problems and may seem antiquated, but let's not throw the baby out with the bathwater. A good grand jury serves as a check on police and prosecutorial powers. See Skipping Grand Jury Bad Idea, Tom Luken, Cincinnati Enquirer (July 17, 2013). For perhaps more than you ever wanted to know on the topic, see the University of Dayton's excellent Federal Grand Jury and State Grand Jury websites.
As for self defense -- sigh. We've already been over that. See De-fense!, court-o-rama.org (April 5, 2012). See also Notable Comments on Self-Defense Laws by Attorney General Eric Holder Sentencing Law and Policy (July 16, 2013).
What started this trend away from our common law roots? Are legislators without law degrees, an increasing phenomenon, to blame? Is the Tough on Crime crowd, who rose to power in the 1990s, part of the problem? Do we point fingers at our last and current president? Have law professors stopped relying on solid casebooks such as Moskovitz's wonderfully well-organized Cases and Problems in Criminal Law? Maybe all of the above. Guantanamo, Zimmerman, and your jury trial rights may be just the beginning of a very hard end.
Keep On Rockin' In The Free World
Posted in Hype on Thursday July 04 2013 @ 7:01am
Just read it already!
Posted in Access on Wednesday June 26 2013 @ 9:23am
We don't talk about the SCOTUS much here. Our focus is, and will always be, state courts and court administration issues.
But this week is different! Ding-dong, DOMA is dead! This was something that never should have been decided in the first place (since when have the Feds ever decided basic family law?), and we are happy that it is gone. For a good reading, see Details on United States v. Windsor: In Plain English Amy Howe, SCOTUSblog (June 26, 2013).
However, we are feeling so much loss at the evisceration of the VRA that not much seems to matter today. When you can't vote, what's left?
How importing is voting? Marriage will continue to be decided by the states -- by votes.
Is it fair or even feasible to compare rights with rights, plights with plights? It is never a good idea, but given the juxtaposition of these opinions, we will say it: voting is more important than marriage. (No offense, lovely court-o-rama spouses!) Voting means hope and change. Voting means that if the status quo is not OK, we can make it better. Voting means that if we want to support the human right to form families, we can. The end of the VRA will have repercussions for generations to come, and undo any good that it did over its too-short life.
John Schwartz at the NYT has a nice primer on the VRA case: Between The Lines of The Voting Rights Act Opinion (June 25, 2013).
Rep. John Lewis has released a powerful statement. Like everything else Lewis says, it stops us in our tracks.
So, excuse us while we weep in the wedding cake.
Posted in Access on Sunday June 23 2013 @ 6:27am
Legal services marketing (if that is the word) is usually twofold. One part focuses on telling the heartbreaking success stories -- the elderly woman who was able to stay in her home, the abused family members who were able to get assistance and went on to win Nobel Prizes.
The second part is how much work they leave undone -- but could, perhaps, do if there were enough resources. This second part was evident in the recent forum given by the Cincinnati Women's City Club and Cincinnati Bar Association.
These unmet needs are characterized by a few factors: funding and funding sources, staffing, eligibility, and need. Prioritizing also fits into the mix.
For example, every legal aid region bases its eligibility on a percentage of the poverty level. Here in Cincinnati, a prospective client must be living at 125% of the poverty level. They receive 30,000 calls for help annually, which are divided up among 6 intake staff (some legal aid offices in other areas use volunteers to help with intake -- not sure if this one does). Of these, 286,000 are eligible for help. Priority is given to Gideonesque cases such as housing, family (especially where domestic violence is a factor), or benefits hearings. Trained volunteer lawyers take about 1400 of the legal aid's 5000 cases. So, you can see, there is a huge portion of unmet needs.
Funding sources for legal aid are whatever one can gather from the rubble of the 1990s Contract with America earthquake. During that time, the Legal Services Corporation budget was drastically slashed in the hopes that it would just go away. You've heard of
Death by a thousand cuts? This was just one big cut. Well, it didn't go away after all -- people need lawyers. Typical funding sources include IOLTA money (but its value shoots up or down depending on the economy), bar association donations and help, LSC, Equal Justice Works, law student clinics and volunteer programs, and others.
A 2010 rule of law index ranks the U.S. low low low compared to other countries in terms of funding legal services. We spend 1/5 as much as New Zealand, and only 1/2 as much as the UK. While the vast differences in legal systems make international comparisons very difficult, it is clear that something is amiss. We need only compare the U.S. to the U.S. LSC funding was cut to the bone in the 90s and is still being cut.
Too, in the wake of Gideon, everyone did anticipate that a Civil Gideon would follow soon after. And it has, in piecemeal form -- jurisdictions require counsel for involuntary commitment, for juveniles (see in re: Gault), for parents in termination of parental rights cases, and in other case types. See The Existing Civil Right to Counsel Infrastructure, Judge Lora J. Livingston and Laura Abel, Brennan Center for Justice (December 4, 2008).
What can be done? When the mandatory pro bono idea is batted about, we hear protests such as
Waaaah! You can't make lawyers do things! (never mind the CLE, dues, educational, financial, ethics, character and fitness, bar exam, and squillion other requirements),
Waaah! Billable hours make it too hard (well, firms, you need to fix that), and even -- we swear, we heard someone say this in a law school ethics course, and it is the ugly truth --
Most lawyers are not interested in the types of cases legal aid hears. A good summary is (again, thanks to Greg Hurley at NCSC) available: State-by-State Pro Bono Service Rules. It includes a nifty History of ABA Model Rule 6.1 Where is your state on this list? Are there ideas you've never considered?
Another approach is to use more people than just lawyers. Most legal aid organizations utilize a slew of volunteer lawyers and law students. A lucky few are near legal clinics housed in law schools. Most use paralegals, many of whom focus on a particular issue such as benefits or elder law issues. Where are the mediators here? The ADR/legal services connection is made at times, but not often enough. Can you write grants? Raise money? You're in, whether you are a legal professional or not.
Another option is to give people less.
Unbundling is a term that means
You get a lawyer, but only for so much. See the NCSC's Unbundled Legal Services Guide. And then there is always the pro se option -- but we will save the few pros and many cons of that for another day.
Fun (and Not-So-Fun) Civil Gideon Facts
Posted in Access on Thursday June 20 2013 @ 8:13am
We were lucky enough to attend the Women's City Club of Greater Cincinnati's forum on Civil Gideon the other day. It was a topic that we love, and a pretty good crowd for a beautiful weekday afternoon.
"Civil Gideon" rights refer to the right to counsel in civil cases (remember, Gideon v. Waignwright only applied to criminal cases). While this right has been applied sporadically in the states -- usually to parents in termination of parental rights cases -- it has not gained universal approval by any means.
Our notes seem to be peppered with Fun Facts, and a few that are less fun but worth knowing anyway. Some came from panelists, others just popped into our pointy head as we listened:
- A survey in California found that 2/3 of the population thought that people did have a right to counsel in civil cases.
- Anthony Lewis, who wrote Gideon's Trumpet, is the late husband of retired Massachusetts Chief Justice Marshall. CJ Marshall has called for better representation, too. See Chief Justice Marshall Issues Call for More Resources to Represent the Most Vulnerable, Greater Boston Legal Services.
- Gideon's crime was stealing money from a honky tonk jukebox.
- The LSC changed much of its focus and resources from funding legal services to funding projects to help unrepresented litigants in the late 90s or so. It was a popularity contest -- homely legal aid vs. glam pro se -- and guess who won? Mary Asbury of the Legal Aid Society of Greater Cincinnati calls the transfer of resources to pro se cases
A bogus approach that has been promoted too much!Amen!!!!!!
- There are many case types where even if civil Gideon existed on a wide scale, parties would still not get representation.
More on this soon. Stay tuned!
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